Environmental laws the Coalition toyed with changing in 2015 are now being used to challenge the port, constructed without environmental approval. Thom Mitchell reports.
Minister for the Environment Greg Hunt is being challenged in the Federal Court over a decision made late last year which conservationists argue jeopardises biodiversity in the pristine Tiwi Islands, around 80 kilometres offshore of Darwin.
After striking controversy in May last year the development, known as Port Melville, was eventually given the go-ahead in late October, having been built almost entirely without Federal Government scrutiny.
As New Matilda revealed in September 2015, Senior Department of Environment Officials briefed Minister Hunt on the possibility that the government had been illegally provided with ‘false and misleading’ information.
“If further action needs to be taken we will take it without fear or favour, no matter where the blame lies,” said Hunt, after a media storm engulfed the project, and Labor Senator Nova Peris demanded an investigation into the development in early 2015.
But no further action was taken against the developers, and in the end Port Melville dodged the more stringent environmental protections associated with being declared a ‘controlled action’ under national environmental law.
Instead a decision was made by Bruce Edwards, a senior Department official, that the development is not likely to have a significant impact on the environment if undertaken in a particular manner.
Consequently, no environmental approval was required.
On January 16, the Environment Centre Northern Territory quietly filed in the Federal Court to challenge this decision, and the less stringent environmental assessment and controls that were consequently placed on Port Melville.
The challenge is being brought using standing provisions under national environmental law which the Coalition is controversially attempting to repeal, to remove the ability of environmental groups to bring cases that challenge government decisions. Minister Hunt and the Department of Environment have not yet responded to requests for comment.
David Morris, Principle Lawyer at the Northern Territory Environmental Defenders Office, said his client “doesn’t intend to speak publicly about [the case]at this time as it is before the court and in very early stages”.
But documents filed with the Federal Court reveal Environment Centre NT is asking that the decision be quashed, and the port declared a ‘controlled action’ which requires a full environmental assessment and approval.
According to AusGroup, the Singapore-listed owner of Port Melville, the development includes more than thirty million litres of diesel storage tanks, a 150-person accommodation village, and warehousing facilities, among other infrastructure.
Ships up to 200 metres long – associated with offshore oil and gas, and potentially military ventures – will weigh anchor at Port Melville, on the Aboriginal-owned Tiwi Islands managed by the Tiwi Land Council.
According to the Federal government 50 listed species – critically endangered, endangered, vulnerable, or migratory – stand to be impacted by Port Melville’s operations. The Tiwi Islands are recognised as being an internationally significant biodiversity hotspot by the Top End government.
In the statement of claims, the Environment Centre NT states that ‘best practice’ measures the government has identified as a guide to govern how the port is operated, instead of more stringent approval conditions associated with ‘controlled actions’, are “vague, uncertain, and insufficiently defined”.
The conservation group argues that the decision the government has imposed on the project “[does not]set out in detail clear, unambiguous, realistic and practical requirements that provide certainty in relation to reducing or avoiding impacts on the [Tiwi environment]”.
The Federal government did impose some defined conditions, including that shipping movements through the narrow Apsley Strait must be limited to no more than 40 per month.
However, the Environment Centre NT will argue that other “best practice” measures referred to – like those for minimising the risk posed by hazardous materials, bio-security and sediment control – “do not convey to the proponent, with reasonable clarity, what it is required to do, or what is required of it”.
The statement of claim argues that there is insufficient certainty, and a lack of evidence, around how Port Melville will impact threatened or migratory species. It states that environmental controls placed on the project are “unclear, ambiguous and unrealistic in terms of audit and enforcement”.
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